Great Bay Coalition files for reconsideration in court case over nitrogen levels

Friday

Nov 23, 2012 at 3:15 AM

By Michelle Kingstonmkingston@fosters.com

DOVER — The Great Bay Municipal Coalition officially filed a motion for reconsideration after a judge’s recent ruling declining to determine if the state Department of Environmental Services was required to follow the New Hampshire Administrative Rulemaking procedures in developing and imposing nutrient criteria for the Great Bay Estuary.

“The communities of the Great Bay Municipal Coalition believe they are entitled to a ruling by the court on whether the DES’ numeric criteria for nitrogen in the Great Bay Estuary is in fact a rule under state law,” Dover City Manager Michael Joyal wrote in an email.

Earlier this year, the coalition, comprised of Dover, Portsmouth, Rochester, Exeter and Newmarket, filed suit in Merrimack County Superior Court, saying DES failed to put the Numeric Nutrient Criteria for the Great Bay Estuary document, commonly known as the “2009 Criteria,” into effect in June 2009, setting the water quality criteria for the nitrogen in the water.

The motion for reconsideration states, “Petitioners (the Great Bay Municipal Coalition communities) have shown that the 2009 Criteria area de facto rule which threaten to interfere or impair their legal rights and privileges to discharge into the Great Bay Estuary. Since the Court has already determined that the Petitioners have standing, they are entitled to a decision from the Court.”

The coalition said once the document was created, DES declared the Great Bay Estuary had too much nitrogen, currently operating with 15 to 20 milligrams of nitrogen per liter. The coalition claims DES had too stringent of water quality standards, which are being followed by the federal Environmental Protection Agency.

To update the facilities to lower the amount of nitrogen in the estuary, the coalition communities would have to spend tens of millions of dollars, with upward of $40 million just in Dover alone. The EPA is suggesting in their permits that the communities must limit the nitrogen in the estuary to 3 milligrams per liter. Newmarket has already received its permit, and the remaining communities are expecting their permits within the next two years.

This requirement of lowering nitrogen comes after Dover hired Wright-Pierce Engineering to draft a design plan to decrease the city’s nitrogen discharge from its plant. The proposed scientific plan proved decreasing nitrogen from its current operating level to 8 milligrams per liter would address the troubled health of the estuary and that 3 milligrams per liter was not necessary. However, once the EPA and NHDES administered a National Pollutant Discharge Elimination Permit for Dover’s treatment facility requiring almost $100 million in upgrades to reduce the amount of nitrogen being discharged into the Great Bay Estuary to three milligrams per liter, the coalition filed suit.

The court’s decision from earlier this month states this to be a federal issue and that the EPA is the organization that would make the ultimate decision to harm the coalition and force them to pay for the costly updates to their water treatment facilities.

The motion for reconsideration states, “Both parties need the Court to determine whether the 2009 Criteria are an invalid rule or whether they can be used by DES as water quality criteria to determine the regulatory status of the Great Bay Estuary as ‘impaired’ for nitrogen as a matter of state law. Addressing the merits of the case would constitute an intelligent and useful decision which will be conclusive as to the ability of DES to enforce its regulatory program, including the imposition of restrictions in state permits, against the Petitioners (the Great Bay Municipal Coalition communities) under state law. Whether the federal government may impose restrictive nitrogen limits following appropriate federal procedures is not material to this dispute.”

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